702 F.

2d 481

Albert COOPER, Appellant,

v.
STATE OF NORTH CAROLINA, Samuel P. Garrison,
Warden, Central
Prison, Appellees.
No. 82-6293.

United States Court of Appeals,

Fourth Circuit.
Argued Dec. 6, 1982.
Decided March 10, 1983.

Norman B. Smith, Greensboro, N.C. (Smith, Patterson, Follin, Curtis,

James & Harkavy, Greensboro, N.C., on brief), for appellant.
Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N.C. (Rufus L.
Edmisten, Atty. Gen., of North Carolina, Raleigh, N.C., on brief), for
appellees.
Before WINTER, Chief Judge, ERVIN, Circuit Judge, and
HAYNSWORTH, Senior Circuit Judge.
ERVIN, Circuit Judge:

Albert Cooper challenges the constitutionality of his incarceration by the state

of North Carolina after his felony conviction in state court. The district court
denied his petition for a writ of habeas corpus and this court granted a
certificate of probable cause. We now affirm.

I.
2

On December 2, 1971, Cooper was discovered by a policeman in a bowling

alley in Goldsboro, North Carolina. He was behaving in a peculiar manner and
was taken to a local hospital, where he told a nurse that he had "destroyed" his
wife and children and made irrational statements to the nurse and to other

hospital personnel. That same evening police entered Cooper's apartment and
found the bodies of his wife and four children, who had been brutally
murdered.
3

Cooper was admitted to a state mental hospital and charged with the murders of
his family. After being shuttled between hospital and court for several months,
he finally was found competent to stand trial, although it was considered
necessary by his doctor to keep him under medication during the trial in order
to keep his mental illness in remission.

Cooper pled not guilty to five counts of first degree murder. His evidence at
trial went toward showing his mental illness, and was largely corroborated by
the state's evidence. Indeed, the state has not contended at any point in Cooper's
odyssey that Cooper is not suffering from mental illness, but only that he was
not legally insane when he committed the murders, and was legally competent
to stand trial.

The trial judge instructed the jury that it could return verdicts of guilty of first
degree murder, guilty of second degree murder, not guilty by reason of insanity,
or not guilty. He distinguished the two degrees of murder and described their
respective elements in accord with North Carolina law at the time.1 The judge
repeatedly informed the jury that the state had the burden of proving beyond a
reasonable doubt all the elements of the crime, including (for first degree
murder) specific intent to kill, premeditation, and deliberation. The judge
further instructed the jury that Cooper had the burden of proving to the jury's
satisfaction that he was legally insane at the time of the murders. He did not tell
the jurors specifically that evidence of Cooper's mental illness could be
considered with regard to the elements of specific intent, premeditation, and
deliberation, although he did state generally that their decision as to the
existence vel non of a reasonable doubt should be "based on reason and
common sense arising out of some or all of the evidence."

The jury found Cooper guilty of first degree murder on all counts, and he was
sentenced to life imprisonment. The North Carolina Supreme Court affirmed
Cooper's conviction over a strong dissent by Chief Justice Sharp, who argued
that Cooper was entitled to a specific jury instruction that evidence of his
paranoid schizophrenia was to be considered in determining whether the state
had proven specific intent, premeditation, and deliberation. State v. Cooper, 286
N.C. 549, 213 S.E.2d 305, 334-35 (N.C.1975) (Sharp, C.J., dissenting).

II.

Cooper maintains before this court only one ground for habeas relief: the claim
of entitlement to a specific jury instruction that evidence of his mental illness
be taken into account in determining the state's success in proving specific
intent, premeditation, and deliberation. A jury charge which compels or even
invites reasonable jurors to accept an unconstitutional view of the law vitiates a
defendant's conviction and can never be harmless error. Sandstrom v. Montana,
442 U.S. 510, 526, 99 S.Ct. 2450, 2460, 61 L.Ed.2d 39 (1979). However, when
reviewing a charge for constitutional infirmity, the court is required to look at
the charge "in its entirety," not just at the challenged parts. Reeves v. Reed, 596
F.2d 628, 629 (4th Cir.1979). While a charge which is correct viewed in its
entirety will be upheld ordinarily despite the existence of misstatements of law,
internal self-contradiction may render it invalid.

First instructing the jury in one way and then in another ... requires reversal for
a new trial ... "If a charge to a jury, considered in its entirety, correctly states
the law, the incorrectness of one paragraph or one phrase standing alone
ordinarily does not constitute reversible error; but it is otherwise if two
instructions are in direct conflict and one is clearly prejudical, for the jury
might have followed the erroneous instructions."

United States v. Walker, 677 F.2d 1014, 1016 n. 3 (4th Cir.1982), quoting
McFarland v. United States, 174 F.2d 538, 539 (D.C.Cir.1949).

10

In collateral review of a jury charge, the court can grant relief only if a stringent
standard is met by the petitioner: that of demonstrating that "the offending
instruction is so oppressive as to render a trial fundamentally unfair." Adkins v.
Bordenkircher, 517 F.Supp. 390, 399 (S.D.W.Va.1981), aff'd, 674 F.2d 279
(4th Cir.1982). 2 The Supreme Court recently stated, in a case in which the
petitioner's claim, like Cooper's, was that an omission in the jury charge
constituted error, that

11

[t]he burden of demonstrating that an erroneous instruction was so prejudicial

that it will support a collateral attack on the constitutional validity of a state
court's judgment is even greater than the showing required to establish plain
error on direct appeal. The question in such a collateral proceeding is "whether
the ailing instruction by itself so infected the entire trial that the resulting
conviction violates due process," Cupp v. Naughten, 414 U.S. [141, 94 S.Ct.
396, 400, 38 L.Ed.2d 368] 147 [ (1973) ], not merely whether "the instruction is
undesirable, erroneous, or even 'universally condemned,' " id. at 146 [94 S.Ct.
at 400]. In this case, the respondent's burden is especially heavy because no
erroneous instruction was given; his claim of prejudice is based on the failure to

give any explanation beyond the reading of the statutory language itself of the
causation element. An omission, or an incomplete instruction, is less likely to
be prejudicial than a misstatement of the law.
12

Henderson v. Kibbe, 431 U.S. 145, 154-155, 97 S.Ct. 1730, 1736, 52 L.Ed.2d
203 (1977) (parallel citations omitted). It is apparent that to afford Cooper relief
this court must find that he has carried a very heavy burden of persuasion.

III.
13

Cooper's primary objection 3 to the trial judge's jury instructions is the latter's
failure to instruct the jury to consider evidence about Cooper's mental illness
with regard to the elements of specific intent, premeditation, and deliberation of
the crime of first degree murder. This, according to Cooper, in effect shifted to
him the burden of disproving those elements of the crime.

14

It is clear that a state may make insanity an affirmative defense to be proven by

the defendant, see Patterson v. New York, 432 U.S. 197, 205, 97 S.Ct. 2319,
2324, 53 L.Ed.2d 281 (1977), and may rely on a presumption of sanity in
proving its case-in-chief in a criminal prosecution, see Mullaney v. Wilbur, 421
U.S. 684, 702 n. 31, 95 S.Ct. 1881, 1891 n. 31, 44 L.Ed.2d 508 (1975). It is
equally clear that the state must prove beyond a reasonable doubt every element
of the crime with which a defendant is charged, see In re Winship, 397 U.S.
358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and "may not shift the burden of
proof to the defendant by presuming [an element of a crime] upon proof of the
other elements of the crime." Patterson, 432 U.S. at 215, 97 S.Ct. at 2329. The
labels attached by the state legislature or supreme court are not dispositive, see
Patterson, id. at 210, 97 S.Ct. at 2327, and the federal courts are to employ a
"functional analysis" aimed at determining whether the state has in effect
incorporated the absence of the affirmative defense into the elements of the
crime. See Holloway v. McElroy, 632 F.2d 605, 625, 628 (5th Cir.1980), cert.
denied, 451 U.S. 1028, 101 S.Ct. 3019, 69 L.Ed.2d 398 (1981).

15

Cooper claims that by failing specifically to instruct the jury that it should
consider mental illness evidence in connection with the state's proof of specific
intent, premeditation, and deliberation, the state trial court put the burden on
him of demonstrating, through the insanity defense, the absence of intent.
Under North Carolina law, the existence of mental illness can negate the
possibility of intent, deliberation, and premeditation, see State v. Cooper, 213
S.E.2d at 320, elements of first degree murder which the state had to prove to
convict Cooper. Cooper argues that the judge's specific instruction to consider
the mental illness evidence with respect to his affirmative defense of insanity

might have misled the jury into thinking that it could consider that evidence
only in that regard.
16

While there is a slight possibility that the jury could have misunderstood the
trial judge's somewhat imprecise instruction, Cooper has not made the showing
that "the offending instruction [rendered the] trial fundamentally unfair,"
Adkins, 517 F.Supp. at 379, necessary to support the grant of the writ of habeas
corpus. The trial judge did tell the jury that they were to consider whether the
state had excluded all reasonable doubts on the basis of "some or all of the
evidence." He repeatedly instructed the jury that the state had to prove all the
elements of first degree murder beyond a reasonable doubt, and that this burden
of persuasion included the elements of specific intent, premeditation, and
deliberation. He stated that "with deliberation" meant "while in a cool state of
mind." Viewed "in its entirety," we do not find that the charge was misleading,
or "infected the entire trial." Henderson, 431 U.S. at 154, 97 S.Ct. at 1736.4

IV.
17

Cooper has failed to shoulder with success the heavy burden on a habeas
petitioner who challenges a jury charge because of a sin of omission. Therefore,
the district court's denial of the writ must be affirmed.

18

AFFIRMED.

The judge's instruction that proof of an intentional killing gave rise to a

presumption of malice accorded with then current state law but violated the due
process requirements of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44
L.Ed.2d 508 (1975). This claim was not raised on direct appeal to the state
supreme court, and, therefore, federal habeas relief is precluded. See Cole v.
Stevenson, 620 F.2d 1055 (4th Cir.1980), cert. denied, 449 U.S. 1004, 101
S.Ct. 545, 66 L.Ed.2d 301 (1980)

This narrow standard of review does not contradict the general principle that
constitutional infirmity in a jury charge is never harmless error, but only
requires a stricter standard of proof from a habeas petitioner seeking to show
such infirmity than is imposed on a criminal defendant in a direct appeal from
his or her conviction

Cooper also contends that the North Carolina Supreme Court's opinion on his
direct appeal established an irrebuttable presumption of capacity to deliberate
and premeditate arising upon his failure to prove his insanity defense, and that

such a presumption violates due process. This argument misconceives our role
in habeas corpus proceedings. This court does not exercise appellate
jurisdiction over the state supreme court, and our concern in such proceedings
is not to correct alleged errors in that court's views of federal law, but solely to
determine if the petitioner's incarceration violates the federal Constitution. As
we discuss below, the state trial court did not deny Cooper due process, and his
incarceration is constitutional
Cooper's final argument, that his conviction violated the equal protection clause
because North Carolina law guarantees a defendant a jury instruction on the
effect of voluntary intoxication on the intentional elements of first degree
murder, but does not guarantee such an instruction on the effect of mental
illness, was not presented to the state supreme court or to the federal district
court below. Cooper, therefore, may not raise this contention here. See Cole v.
Stevenson, 620 F.2d 1055 (4th Cir.1980).
4

Cooper's reliance on Hughes v. Mathews, 576 F.2d 1250 (7th Cir.1978), cert.
dismissed, 439 U.S. 801, 99 S.Ct. 43, 58 L.Ed.2d 94 (1978), is misplaced. The
constitutional error in that case was that the state used a rebuttable presumption
of intent to convict a defendant while forbidding him to introduce relevant
psychiatric evidence tending to rebut the presumption. No evidence was
excluded in this case